Landmark ruling on birth certificates hailed

Fidelis Munyoro Chief Court Reporter

The High Court decision giving fathers of children born out of wedlock a legal right to acquire birth certificates for their children where the mothers cannot be found or become unavailable to do this, has been welcomed as progressive and part of the process of treating all children equally, regardless of the marital status of their parents.

The landmark ruling follows a successful application by an upset father Mr Bernard Tashu, who was supported by Justice for Children Trust represented by its director Mrs Petronella Nenjarama-Nyamapfene.

Justice Owen Tagu on Monday ordered the registrar of birth and deaths registration to allow fathers to apply for and obtain birth certificates for their children born out of wedlock if the mothers deserted or abandoned their children.

For children born in a registered marriage, fathers have always been able to apply for a birth certificate on their own, simply presenting a copy of the marriage certificate and the identity documents of both parents and almost all early registrations are, in fact, done by fathers.

The new decision, giving fathers of children born out of wedlock new rights, reinforces the status of the High Court as the upper guardian of all minor children.

The ruling follows a set of recent High Court and Supreme Court decisions that basically in custody cases allow a child born out of wedlock the same rights as a child born in wedlock. 

While the original High Court decision found that custody in such cases should be shared, the Supreme Court, while recognising that the old law giving sole custody and guardianship to the mother was outdated, did modify the ruling by insisting that each case had to be decided on the circumstances, with the child’s interests’ paramount, as was the case with children born in wedlock whose parents split. 

That decision gave all children the same rights, regardless of the marital status of their parents.

In the latest case Mr Tashu was failing to acquire a birth certificate for his 11-year-old son, who was born out of wedlock and later abandoned by his mother, until the High Court came to his rescue on Monday.

Legal experts yesterday unanimously approved the decision and gave the court a round of applause. 

Advocate Garikai Sithole said the judgment was progressive as it demonstrated an understanding by the High Court of its role as the upper guardian of all minor children and the need to ensure the adoption of measures which encouraged the best parental care to be afforded to children born out of wedlock, as enshrined in the Constitution.

“It encourages adoption by the state of measures and policies which encourage best parental care,” he said.

“The judgment also adopts a stance which promotes adherence to Section 56 of the Constitution such as affording equal protection and benefit of the law to children born out of wedlock when compared to those born in wedlock.

“Such children and fathers retain the right not to be treated unfairly, by virtue of the father’s marital status.” 

Another lawyer Mr Nickel Mushangwe said the ruling followed the progressive jurisprudence the courts have set since the case of Katedza v Chunga, which allowed mothers of children born out of wedlock to obtain passports, without the consent of the minor children’s fathers.

 “It gives resonance to the concept of ‘best interests of the child,” he said. “In most cases, children were becoming hostages to warring and antagonistic parents and this prevented or delayed them from accessing identity documents.

“Section 56(3) of the Constitution of Zimbabwe now accords equal treatment to children whether they are born in or out of wedlock.”

Mr Mushangwe said the court decision meant that it had adhered to the Constitution in letter and spirit.

 South Africa-based Zimbabwean lawyer Mr Tendai Toto said: “The development is amazing and a step in the right direction for the recognition and the promotion of children’s rights of identity, the right to belong to a family and the restoration of the dignity of children born out of wedlock.

“The ruling also dignifies and recognises men as equally responsible parents and egalitarian parenting”.

 Lawyer Mr Admire Rubaya said: “That is a welcome development. People ought to realise that there are responsible fathers out there who will take the necessary steps to make sure their kids have everything required to live a normal life.”

Adv Tafadzwa Mapuranga weighed in saying the ruling was a simple enough ruling reflecting a correct position of the law.

“Simple because maternity is usually never in issue and in our current birth registration system it is only necessary that the man say I am the father to prove paternity,” he said. 

He said as per the Constitution mothers and fathers have equal rights and responsibilities towards the children.

 “My view is that it is a brilliant ruling. A situation should never be allowed to arise where children are at any one moment without someone acting loco parents,” he said.

“At any rate, a father remains a father at all times. It would be absurd to disentitle him to obtain a birth certificate for his child for the mere reason that the child was born out of wedlock. I find this decision a progressive one which has outlawed an archaic element of our law.”

The two applicants were represented by Zimbabwe Human Rights NGO Forum lawyers who confirmed the judge’s ruling on Monday, although the full judgment was yet to be made available.

Registrar General, Home Affairs Minister and the Master of the High Court were listed as respondents in the application.

Mr Tashu and Mrs Nyamapfene argued that by refusing to let fathers of children born out of wedlock from acquiring birth certificates for children whose mothers cannot be located or do not wish to cooperate, the Government was depriving those unregistered children of the right to access some basic social services.

Mr Tashu argued that officials from the registrar-general’s office had barred him from acquiring a birth certificate for his son, whose mother cannot be found.

He said it was unlawful for the RG’s office to grant mothers a definite advantage in acquiring birth certificates in the absence of their fathers, when fathers were barred from doing the same.

He argued that by denying him an opportunity to acquire his son’s birth certificate, the registrar general was violating section 35 of the constitution that guarantees every citizen, including children, the right to acquire birth certificates.

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